April 23, 2018

The claimants, NT1 and NT2, were two businessmen who were convicted of criminal offences many years ago.

The claimants issued proceedings against Google LLC seeking orders requiring details about their offending and their convictions and sentences to be removed from Google search results, on the basis that such information was not just old, but out of date, and irrelevant, of no public interest, and/or otherwise an illegitimate interference with their rights. Google resisted both claims, maintaining that the inclusion of such details in its search results was and remained legitimate.

In the late 1980s and early 1990s, NT1 was involved with a controversial property business that dealt with members of the public. In the late 1990s, he was convicted after a trial of a criminal conspiracy connected with those business activities, and sentenced to a term of imprisonment. He was accused of, but never tried for, a separate conspiracy connected with the same business, of which some of its former staff were convicted. There was media reporting of these and related matters at that time. Links to that reporting were made available by Google search, as were other links, including some to information on a parliamentary website. NT1 was released on licence after serving half his sentence in custody. In due course, the conviction became “spent” conviction, but the reports remained online, and links continued to be returned by Google search. NT1 asked Google to remove such links.

As for NT2, in the 2000s he was involved in a controversial business that was the subject of public opposition over its environmental practices. Over ten years ago he pleaded guilty to two counts of conspiracy in connection with that business, and received a short custodial sentence. The conviction and sentence were the subject of reports in the national and local media at the time. NT2 served some six weeks in custody before being released on licence. The sentence came to an end over ten years ago. The conviction became “spent” several years ago. The original reports remained online, and links continued to be returned by Google Search. NT2’s conviction and sentence had also been mentioned in some more recent publications about other matters, two of them being reports of interviews given by NT2. NT2 asked Google to remove such links.

The questions for the court were: (i) whether the claimants were entitled to have the links in question excluded from Google search results, either: (a) because one or more of them contained personal data relating to them that are inaccurate; or (b) because for that and/or other reasons the continued listing of those links by Google involved an unjustified interference with the claimants’ data protection and/or privacy rights.

NT1 presented six complaints of inaccuracy to the court. Mr Justice Warby dismissed all six complaints on the basis that the evidence was inadequate. NT1 had, essentially failed to provide all the information needed to establish that the data were evidently inaccurate.

As for the question of interference with NT1’s privacy and/or data protection rights, Warby J concluded that in the early 2000s NT1 was a public figure, with a limited role in public life. His role had changed, however, such that he now played only a limited role in public life, as a businessman not dealing with consumers. That said, he still played such a role.

Warby J found that the information about his crime and punishment was not information of a private nature. It was information about business crime, its prosecution, and its punishment. It was essentially public in its character. NT1 did not enjoy any reasonable expectation of privacy in respect of the information at the time of his prosecution, conviction and sentence. He was not, therefore, entitled to have it delisted now. The information had not been shown to be inaccurate in any material way. It related to his business life, not his personal life. It was sensitive information, and NT1 had identified some legitimate grounds for delisting it, but he had failed to produce any compelling evidence in support of those grounds. Much of the harm complained of was business-related, and some of it pre-dated the time when he could legitimately complain of Google’s processing of the information.

Further, Warby J said, NT1’s Article 8 private life rights might now be engaged, but they did not attract any great weight. The information originally appeared in the context of crime and court reporting in the national media, which was a natural and foreseeable result of NT1’s own criminal behaviour. The information was historic, and the domestic law of rehabilitation was engaged, but that was only so at the margins. NT1’s sentence was of such a length that, at the time, he had no reasonable expectation that his conviction would ever be spent. The law had changed, but if the sentence had been any longer, the conviction would still not be spent. It would have been longer but for personal mitigation that had no bearing on culpability.

Finally, Warby J said, NT1’s business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. The information retained sufficient relevance today. NT1 did not accept his guilt, had misled the public and the court, and had shown no remorse. He remained in business, and the information served the purpose of minimising the risk that he would continue to mislead, as he had in the past. Delisting would not erase the information from the record altogether, but it would make it much harder to find. The case for delisting was not made out.

As for NT2, Warby J found that the newspaper article about which NT2 complained was indeed inaccurate, in that it gave a misleading portrayal of NT2’s criminality and conveyed imputations to the effect of which he complained. Accordingly, Warby J granted a delisting order in respect of the URL for the article, in its current form.

As for interference with NT2’s privacy rights, Warby J considered that the crime and punishment information in this instance had indeed become out of date, irrelevant and of no sufficient legitimate interest to users of Google to justify its continued availability, so that an appropriate delisting order should be made.

Warby J noted that the conviction was always going to become spent, and it did so in March 2014, though it would have done so in July of that year anyway. NT2 had frankly acknowledged his guilt, and had expressed genuine remorse. There was no evidence of any risk of repetition. His current business activities were in a field quite different from that in which he had been operating at the time. His past offending was of little if any relevance to anybody’s assessment of his suitability to engage in relevant business activity now, or in the future. There was therefore no real need for anybody to be warned about that activity. (NT1 v Google LLC [2018] EWHC 799 (QB) — to read the judgment in full, click here).